955 - Issue; he said: "There is no bequest for an heir, unless the heirs permit that."
The entirety of this matter is that if a person makes a bequest to his heir, and the rest of the heirs do not permit it, it is not valid, without any disagreement among the scholars. Ibn al-Mundhir and Ibn 'Abd al-Barr said: The people of knowledge have reached a consensus on this. Reports have come from the Messenger of Allah, peace and blessings of Allah be upon him, regarding this. Abu Umamah narrated, saying: I heard the Messenger of Allah, peace and blessings of Allah be upon him, say: "Allah has indeed given every person entitled to a right his right, so there is no bequest for an heir." Narrated by Abu Dawud, Ibn Majah, and al-Tirmidhi (1). This is also because the Prophet, peace and blessings of Allah be upon him, forbade the gifting of only some of one's children (2) and favoring some over others during a state of health, strength of ownership, and the possibility of rectifying justice among them by giving to the one he did not give to later, because of the enmity and envy it causes among them. Therefore, in the state of his death or illness, with his weakness of ownership, the attachment of rights to him, and the impossibility of rectifying justice among them, it is even more appropriate and fitting.
If they permit it, it is permissible, according to the opinion of the majority of scholars. Some of our companions said: The bequest is void, even if the rest of the heirs permit it, unless they give it to him as an original gift, deriving this from the apparent meaning of Ahmad's statement in the narration of Hanbal: "There is no bequest for an heir." This is the opinion of al-Muzani and the People of the Literal (Ahl al-Zahir). It is also an opinion attributed to al-Shafi'i. They argued based on the apparent meaning of the statement of the Prophet, peace and blessings of Allah be upon him: "There is no bequest for an heir." The apparent doctrine of Ahmad and al-Shafi'i is that the bequest is valid in itself. This is the opinion of the majority of scholars, because it is a disposition issued by one qualified to perform it, regarding his own property, so it is valid, just as if he had bequeathed it to a stranger. The report has also been narrated with: "Unless the heirs permit it." An exception from a negation is an affirmation, so this serves as evidence for the validity of the bequest upon permission. Even if it were devoid of the exception, its meaning would be that there is no effective or binding bequest, or something similar to this, or it would be interpreted as: There is no bequest for an heir in the event of the lack of permission from the other heirs. The benefit of the disagreement is that if the bequest is valid,
(1) Its verification was provided previously on page 390. (2) Its verification was provided previously on pages 256 and 257. (3) Omitted from the original, A. (4) In the original and M: "from."
